6th Circuit Upholds Bans on Same-Sex Marriage

The 6th Circuit Court of Appeals today upheld the bans on same-sex marriage in Michigan, Ohio, Kentucky and Tennessee, becoming the first appeals court to do so and virtually guaranteeing that the Supreme Court will take up the issue early next year. It was a split decision, 2-1. The majority opinion said, in part:

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?…

And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to

resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?

On the substance, the appeals court relied on Baker v Nelson, a 1972 case involving same-sex marriage in which the Supreme Court denied cert in a case with a one-word order that said the case did not raise “a substantial federal question.” The court then says:

This type of summary decision, it is true, does not bind the Supreme Court in later cases. But it does confine lower federal courts in later cases. It matters not whether we think the decision was right in its time, remains right today, or will be followed by the Court in the future. Only the Supreme Court may overrule its own

precedents, and we remain bound even by its summary decisions “until such time as the Court informs [us] that [we] are not.” The Court has yet to inform us that we are not, and we have no license to engage in a guessing game about whether the Court will change its mind or, more aggressively, to assume authority to overrule Baker ourselves.

Other appeals courts, all of them that have taken up the issue in fact, have all concluded otherwise. So what does this mean? It means we now have a circuit split, which means the Supreme Court will now almost certainly take up one of these cases, consolidate all the others with it, and decide the issue, hopefully once and for all. Expect cert petitions to be filed quickly, accepted and oral argument to be heard probably in February or so and a ruling on the last day of the term in June. The Supreme Court will want to avoid having such a ruling come down in 2016, a presidential election year.

My prediction remains the same, a 5-4 ruling overturning all such laws and declaring an Equal Protection right for gay couples to marry, written by Justice Kennedy. You can read the full 6th Circuit ruling here.

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  • rationalinks

    This whole thing just baffles me and seems like such a no-brainer. Your religion does not give you the right to discriminate against people just because you think they are icky…period. Business can’t do it, the states can’t do it, and the fed can’t do it. In a sane world, this ruling should take like 5 seconds, not months to decide. There are zero arguments against SSM that are not religiously motivated. Open and shut.

  • http://ahcuah.wordpress.com/ ahcuah

    My prediction is that the case will be taken en banc by the full 6th Circuit first.

  • marcus

    @ 2 … and possibly overturned, giving the Supremes another chance to dodge a ruling.

  • David C Brayton

    I read most of the opinion and was struck by how badly reasoned it was. For example, the majority said it was bound by Baker let failed to address the reasoning of the the other courts that rejected Baker as controlling.

    The dissent summarized the ‘reasoning’ of the majority quite well when she wrote: “[O]ne is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens.”

  • sugarfrosted

    @3 There is no reason for the Supremes to dodge the ruling anymore, as they broke up years ago… oh you mean the supreme court. I’m almost positive they were just punting really doing anything until after the midterms, so they don’t really have a reason now anyway.

  • sugarfrosted

    @3, likely their decision would be the same no matter which you mean. (To the 6. court: “Stop in the name of love.”)

  • Chiroptera

    David C Brayton, #4: The dissent summarized the ‘reasoning’ of the majority quite well when she wrote: “[O]ne is tempted to speculate that the majority has purposefully taken the contrary position to create the circuit split regarding the legality of same sex marriage that could prompt a grant of certiorari by the Supreme Court and an end to the uncertainty of status and the interstate chaos that the current discrepancy in state laws threatens.”

    Huh. That thought crossed my mind when I was reading Ed’s OP, namely whether the 6th Circuit was deliberatedly deciding that, no, the Supreme Court wasn’t going to be so easily excused from its duty to issue a definitive ruling on the issue.

  • sezme

    I agree with @2 ahcuah that this will be appealed for an en banc hearing. In fact, I wouldn’t be surprised if it turned out Roberts and Kennedy called the Sixth and urged an en banc hearing and that the panel ruling be overturned. They don’t want this hot potato.

  • flatlander100

    Why wouldn’t an en banc rehearing in the 6th Curcuit be the probable next step?

    If it goes to SCOTUS, Iam not nearly as confident as so many seem to be that the result will be favorable to gay marriage.

  • http://ahcuah.wordpress.com/ ahcuah

    BTW, I notice that the 6th Circuit is split 10-5 on whether judges were appointed by Republican or Democrat presidents. That doesn’t necessarily indicate how they might vote on this issue, but it sure still leaves open the possibility of an en banc court upholding the panel decision. And then it almost assuredly would go to the Supreme Court.

  • dingojack

    ahcuah – “BTW, I notice that the 6th Circuit is split 10-5 on whether judges were appointed by Republican or Democrat presidents.

    The members of the 6th Circuit are so senile it can’t even remember which President (or even the Presidential party) appointed them as judges?!? Surely it’s time to sack them and appoint some less mentally impaired judges.

    😀 Dingo

  • dhall

    In other words, these judges are just fine with a tyranny of the majority. So, if a majority of the people decide that minorities have no right to vote, get a driver’s license, open a business, etc., and vote to prohibit those things, then they think that’s great. Equal protection and equal treatment under the law is entirely up to the whims of the majority. Wonderful. Beyond that, #9, you’d think that corporate America, which pretty much owns government–including the Supreme Court–would be all for same-sex marriage since it may very well lead to the sorts of over-the-top hideously expensive weddings we already see with opposite-sex couple weddings. More people could be sucked into the wedding industry’s racket, and that would be good for business, right?

  • D. C. Sessions

    More people could be sucked into the wedding industry’s racket, and that would be good for business, right?

    Whose business? Wedding planners, obviously. Hotels and airlines? Sure. Homebuilding? No, because there went the whole down payment on transitory wedding expenses. Likewise cars, home electronics, and a whole bunch of other stuff that competes with wedding expenses for the consumer dollar.

    All in all, I suspect that the American business sector would be pretty “meh” on the topic.

  • corwyn

    @13:

    The economy of this country is based on consumer spending. It doesn’t matter to the economy where it is spent. The money doesn’t actually disappear when it is spent.

  • eric

    I wouldn’t be surprised if it turned out Roberts and Kennedy called the Sixth and urged an en banc hearing and that the panel ruling be overturned. They don’t want this hot potato.

    Ed’s second paragraph sounded to me like even the two judges who decided the case don’t want this hot potato. I know their “poll all judges” comment is saying that the judiciary cannot act like a legislature, but to even bring it up in that particular manner sounds like they are saying “gee, wouldn’t it be nice if all16 circuit court judges could consider this, and take it out of our hands…”

  • hunter

    ahcuah, et al.: The ACLU has announced that it will appeal directly to SCOTUS.

    As for the majority opinion, it’s garbage. As the dissent points out, the majority carefully avoided addressing the Constitutional issues in the case — Due Process and Equal Protection — and instead rambled on about federalism and “vox populi,” both of which are irrelevant.

  • Reginald Selkirk

    What we have authority to decide instead is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?…

    And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?

    Translation: “We don’t want to do the job we were hired to do.”

  • Reginald Selkirk

    Despite the generally conservative stance of five of the Supreme Court justices, keep in mind that Roberts may be sympathetic to gay rights.

    from Wikipedia

    Roberts attended Notre Dame Elementary School,… and was a regional champion in wrestling. He participated in choir and drama…

    Roberts entered private law practice in 1986 as an associate at the Washington, D.C.-based law firm of Hogan & Hartson.[5] As part of Hogan & Hartson’s pro bono work, he worked behind the scenes for gay rights advocates, reviewing filings and preparing arguments for the Supreme Court case Romer v. Evans (1996), which was described in 2005 as “the movement’s most important legal victory”.

    If he’s not a classic closet case, he probably has some as friends.

  • John Pieret

    What you want to read is Judge Martha Craig Daughtrey’s dissent, as I think the majority opinion, before very long, will be a footnote in the dustbin of the wrong side of history. Over at my blog [Google “Thoughts in a Haystack”], I’ve stripped out the technical legal stuff and left, I think, the gist of the dissent. The last two paragraphs, however, give a pretty good idea of the tenor of Judge Daughtrey’s decision:

    Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary. Of course, the framers presciently recognized that two of the three co-equal branches of government were representative in nature and necessarily would be guided by self-interest and the pull of popular opinion. To restrain those natural, human impulses, the framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims.

    More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” … If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

    I think Justice Roberts, who probably doesn’t want to be the 21st Century’s Roger B. Taney, might well make it a 6-3 decision in favor of what is right and just.

  • John Pieret

    Oh, and be sure to read the part of the dissent concerning two of plaintiff’s, April DeBoer and Jayne Rowse. Even after almost 40 years of having my hide toughened by practicing law, I can’t read that part without crying.

    Judge Daughtrey nailed the majority to the wall when she said:

    Readers who are familiar with the Supreme Court’s recent opinion in United States v. Windsor … and its progeny in the circuit courts, particularly the Seventh Circuit’s opinion [by Judge Posner] in Baskin v. Bogan … (“Formally these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, . . . they are about the welfare of American children.”), must have said to themselves at various points in the majority opinion, “But what about the children?” I did, and I could not find the answer in the opinion. For although my colleagues in the majority pay lip service to marriage as an institution conceived for the purpose of providing a stable family unit “within which children may flourish,” they ignore the destabilizing effect of its absence in the homes of tens of thousands of same-sex parents throughout the four states of the Sixth Circuit.

  • Chiroptera

    Reginald Selkirk, #18: If he’s not a classic closet case, he probably has some as friends.

    Irrelevant. We all know how conservatives put aside their personal feelings and stick to the law, lol.

  • colnago80

    Re Reginald Selkirk @ #18

    Roberts has a cousin living in California who is a lesbian and, I believe, is married to her wife in that state.

  • http://ahcuah.wordpress.com/ ahcuah

    “The ACLU has announced that it will appeal directly to SCOTUS.”

    While having it go to SCOTUS is likely, Lyle Denniston at SCOTUSblog notes that each of the plaintiffs has their own choice on whether to go en banc first. If one of them does, expect the Supreme Court to punt yet again. I suspect they’re not so sure themselves what the result would be amongst themselves. They also know that the issue is so contentious that they may take every opportunity to ignore it.

  • gshelley

    Eugh

    What we are left with is this: By creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and de ductions), the States created an incentive for two people who procreate together to stay toge ther for purposes of rearing offs pring. That does not convict the States of irrationality, only of awareness of the biological reality that couples of the same sex do not have children in the same way as couples of opposite sexes and that couples of the same sex do not run the risk of unintended offspring. That explanation, still releva nt today, suffices to allow the States to retain authority over an issue they have regulated from the beginning.

    The same old argument thoroughly demolished in the Posner ruling and shown to be totally bogus in all the cases so far. At least they acknowledge that states don’t actually treat marriage as something to control procrestion, but basically shrug and “meh”

    If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point.

    No answer is a little surprising, I can think of two

    1) This might be right. We will see if anyone tries to argue that limiting marriage to two people is unconstitutional and the government can’t provide any rational counter arguments

    2) Marriage is very specifically designed for two people, especially with regards to rights of inheritance and decision making. The current structure of marriage can not accomodate more than two people in the say way it can accomodate two people of the same sex.

  • John Pieret

    gshelley:

    3) Does anyone at all believe that an essential part of marriage is monogamy? If so, they haven’t been paying attention for quite some time. The “institution” of marriage allows people to forge their own rules on monogamy, as it should on the issue of the gender of their partners.

  • gshelley

    And as Mano said on his blog

    4) Discriminating on the basis of gender is a violation of equal protection, which limiting marriage to two people is not

    The use of the “plaintiffs have no answer to this point” argument suggests the judges weren’t even a little interested in the actually arguments, and just wanted to find something, no matter how ludicrous that could be used as a cover for defending bigotry. Which has been the plan of most of the states who recently defended such laws

  • D. C. Sessions

    The economy of this country is based on consumer spending. It doesn’t matter to the economy where it is spent. The money doesn’t actually disappear when it is spent.

    Precisely my point. The money gets spent, but where it gets spent creates winners and losers in the market. After all, that’s why there is advertising. So more money spent on lavish weddings is less money spent on fishing tackle — and you’ll have some companies in favor of lavish weddings and others opposed for that very reason.

    Net impact: close to zero.

  • dingojack

    Reginald Selkirk (#18) – “…Roberts attended Notre Dame Elementary School,… and was a regional champion in wrestling. He participated in choir and drama…”

    Oh well that seals it. I mean having an interest in wresting, drama and singing is proof positive of gayness!!

    Sheesh, lucky there’s not a hint of stereotyping there.

    Dingo

  • gshelley

    Now that I think on it, I don’t even get the slippery slope argument. How does the fact that other laws the judges like have any relevance to whether the one they are considering is constitutional? Surely it is either constitutional, or it isn’t. The fact that there might be repercussions they don’t want surely can’t be an argument for the law not being constitutional. Can it?

  • pocketnerd

    Thus Spake Zaragshelley, #24:

    2) Marriage is very specifically designed for two people, especially with regards to rights of inheritance and decision making. The current structure of marriage can not accomodate more than two people in the say way it can accomodate two people of the same sex.

    You know, I’m really looking forward to the arguments over multiple marriage coming down the pipe in 20-30 years. That’s the nice thing about being part of the queer community; we each get a turn at being thrown under the bus by politicians (and each other) insisting it’s too soon, and our day will come, just… not yet. Not until after this election cycle, or maybe the one after that.

  • Reginald Selkirk

    as quoted by gshelley: If it is constitutionally irrational to stand by the man-woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point.

    There’s an easy answer to that point. If you are concerned with rationality, as you claim to be, then it should be obvious that this is a fallacious appeal to consequences.

  • Reginald Selkirk

    You know, I’m really looking forward to the arguments over multiple marriage coming down the pipe in 20-30 years.

    It will certainly be interesting. I do not in principle oppose multiple marriage, but I will point out that as it is practiced in certain quarters (e.g. fundamentalist “Mormon” cults) it more closely resembles serial child rape. Establishing that all parties freely consent will be a big chunk of administrating it fairly.

  • pocketnerd

    Thus Spake ZaraReginald Selkirk, #32:

    I do not in principle oppose multiple marriage, but I will point out that as it is practiced in certain quarters (e.g. fundamentalist “Mormon” cults) it more closely resembles serial child rape.

    Yes, and of course we polyfolk enjoy being compared to child rapists almost as much as homosexuals do. Because it’s a totally relevant comparison either way.

  • gshelley

    It also occurs to me that their “rational basis” manages to actually contradict itself.

    One starts from the premise that governments got into the business of defining marriage, and remain in the business of defining marriage, not to regulate love but to regulate sex, most especially the intended and unintended effects of male-female intercourse. Imagine a society without marriage. It does not take long to envision problems that might result from an absence of rules about how to handle the natural effects of male-female intercourse: children. May men and women follow their procreative urges wherever they take them? Who is responsible for the children that result? How many mates may an individual have? How does one decide which set of mates is responsible for which set of children?

    People may not need the government’s encouragement to have sex. And they may not need the government’s encouragement to propagate the species. But they may well need the government’s encouragement to create and maintain stable relationships within which children may flourish.

    So, basically, the justification for the law is that marriage is to regulate procreation, not to provide the best environment for children, but the justification for regulating procreation is to provide the best environment for children